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FIRST DIVISION
October 27, 2003

No. 1-00-3280

JUSTICE McBRIDE delivered the opinion of the court upondenial of rehearing: 

Defendants police officer Timothy Gramins, police officerRonald Glads, and the Village of Skokie (Village or Skokie) appealfrom a judgment in favor of plaintiff Alla Ozik, as specialadministrator of the estate of Mikhail Ozik, deceased.

In a first amended complaint, Alla Ozik alleged that her 16-year old son, Mikhail Ozik, was a passenger in a vehicle beingoperated by 19-year-old Alexander Goldberg on September 13, 1995,at 10:16 p.m., when the officers detained and issued trafficcitations to Goldberg. She further alleged the officers knew orshould have known that the underage Goldberg was intoxicated butallowed Goldberg to retake control of the vehicle at approximately11:30 p.m. Further, while driving at 11:47 p.m., Goldberg lostcontrol of the vehicle and struck a tree, causing slight injuriesto himself and fatal injuries to Mikhail Ozik. Plaintiff soughtdamages from Goldberg, and the officers and Village, based on theSurvival Act (755 ILCS 5/27-6 (West 1994)), the Wrongful Death Act(740 ILCS 180/1 (West 1994)), and the family expense act (see 750ILCS 65/15 (West 1994)). Plaintiff subsequently dismissed Goldbergpursuant to settlement, for the limits of his $20,000 insurancepolicy, over the objection of the remaining defendants. Plaintifffiled a second amended complaint naming only the officers andVillage as defendants, and her claims proceeded to trial. The juryreturned a $1.8 million verdict in plaintiff's favor, reduced theverdict by 35% due to Mikhail Ozik's contributory negligence, andthe trial court entered a judgment of $1.14 million against theofficers and Village.

On appeal, the officers and Village do not dispute any of thefacts adduced at trial and raise only arguments of law. Theofficers and Village contend the judgment is in error, because: (1)the officers were under no duty to Mikhail Ozik to take custody ofGoldberg instead of issuing traffic citations, (2) even if theofficers were under an actionable duty, they were immune from tortliability due to sections 4-102 and 4-107 of the Local Governmentaland Governmental Employees Tort Immunity Act (745 ILCS 10/4-102, 4-107 (West 1994) (Tort Immunity Act or Act)), and (3) if they werenot immune from liability, they were entitled to apportionliability to the dismissed defendant Goldberg, in order to benefitfrom section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117 (West 1994)), the several liability law.

We review the relevant facts. During the hearing on AllaOzik's motion to dismiss Goldberg pursuant to the settlement, sheindicated Goldberg had tendered the limits of his insurancecoverage, was incarcerated, and had no assets. The recorddiscloses that Goldberg was convicted of the reckless homicide ofMikhail Ozik, and began serving a 10-year prison sentence in 1996. The police officers' attorney, who said she was also appearing thatday on behalf of the Village, asked for time to file a writtenobjection. Goldberg's attorney responded that the officers andVillage lacked standing to object, because they had not filed acounterclaim against Goldberg seeking contribution. He also statedthe settlement was in his client's best interests and entered intoin good faith, and that unless there were facts showing collusionor fraud between the settling parties, there was no basis forobjecting to Goldberg's dismissal. The trial judge allowed theofficers' attorney to respond to the contribution and "good faith"arguments. The trial judge then indicated that a briefing schedulewas unwarranted and dismissed Goldberg with prejudice.

As indicated above, Alla Ozik subsequently filed a secondamended complaint. Defendants denied the material allegations andraised section 2-1117 (735 ILCS 5/2-1117 (West 1994)), the severalliability law, as an affirmative defense. The trial judge grantedAlla Ozik's motion to strike the affirmative defense. The trialjudge also granted Alla Ozik's motion in limine to bar anyapportionment of liability under section 2-1117 at the jury trial,and then denied defendants' motion to reconsider this ruling.

John Hudson testified he was a passenger in the backseat ofGoldberg's car on the evening of September 13, 1995. He smelledalcohol on Goldberg's breath while Goldberg drove Hudson, VladPikovskiy, and Mikhail Ozik to Evanston. During the drive,Goldberg drank from a 40-ounce bottle of malt liquor. In Evanston,Goldberg continued to drink from the bottle, and Hudson andPikovskiy smoked marijuana near the car. Goldberg threw the emptybottle out the car's window during the return drive to Skokie andbegan to drive erratically. Goldberg changed from lane to lane atup to 80 miles per hour, and almost hit a car at Howard andMcCormick. Goldberg's eyes were half-closed and bloodshot, andGoldberg was acting drunk. At 60 miles per hour, Goldberg rear-ended a car at McCormick and Dempster, and Hudson was thrown intothe front seat. Hudson urged Goldberg to drive away, whichGoldberg did by driving northbound in the southbound lanes, turningleft against the red light at McCormick and Dempster, and speeding.

Goldberg pulled the car over at a McDonald's restaurant inresponse to a pursuing police car and got out of the car whendirected by an officer. Goldberg used the door to pull himselffrom the seat and for support while Goldberg swayed and swerved. Goldberg lost his balance twice before the officers motioned him tothe sidewalk, and he then swerved and swayed to the sidewalk. During the one-leg-stand test, Goldberg kept putting his foot downto regain balance. The test was repeated, and Goldberg again losthis balance and put his foot down.

The officers returned Goldberg to the car and had Goldbergdrive back toward the accident scene, to a Clark station. Hudsonfell asleep in the car for 60 to 90 minutes and woke up around11:30, when the officers allowed Goldberg to drive away withHudson, Ozik, and Pikovskiy as his passengers. At around 11:45,Goldberg dropped Hudson and Pikovskiy off at their neighboringhomes. At around 12 midnight, Goldberg drove away, tiresscreeching.

Vlad Pikovskiy, the other backseat passenger, testifiedGoldberg's breath had a strong odor of alcohol during the drive toEvanston and that Goldberg's speech was slurred. On the way backto Skokie, Goldberg began driving 80 miles per hour, swerving intooncoming traffic, and almost hit some parked cars. Pikovskiywarned Goldberg he was going to rear-end a car, and Goldbergapplied the brakes, putting his car into a skid. Goldberg's carstruck the other car at 30 to 40 miles per hour, pushing it forwardabout one car's length and into the intersection. Pikovskiy toldGoldberg that Goldberg was drunk and to leave the scene of theaccident, which Goldberg did. When the police approached the car,Goldberg's window was down, and Pikovskiy heard the officers saythe car smelled like weed and liquor. Goldberg almost fell downwhen he got out of the car at the McDonald's, stumbled and heldonto the car door, then swayed to the sidewalk. During the one-leg-stand test, Goldberg put his foot down right away. WhenGoldberg followed the police officer to the Clark station, Goldbergwas swerving the car within the lane. At the Clark station, hewalked the same way he had walked at the McDonald's. When he droveaway from the Clark station, Goldberg was swerving the car withinthe lane. Goldberg dropped Pikovskiy off at 11:50 or 11:55. Pikovskiy acknowledged that he was convicted of theft in 1997 andtwo residential burglaries in 1999.

Alexander Goldberg testified that he drank 80 to 120 ounces ofbeer and malt liquor on September 13, 1995, and had his last drinkabout an hour before rear-ending the car at McCormick and Dempster. The police officer that stopped Goldberg asked Goldberg if Goldbergwas drunk and said he smelled weed in the car. Goldberg was surethe officers were going to know he was drunk because the car stankof weed and he stank of alcohol. He never said he had takenTylenol Cold & Flu. He was dizzy and noticeably swayed next to thecar. He could not stand on one foot because he was drunk. One ofthe officers returned the car keys to Goldberg and told him tofollow the officer to the Clark station. At the Clark station hewas given a test with a flashlight shining in his eyes. He wasgiven some tickets, and overheard the officers talking about whata wild bunch of kids they were and that they had been drinking andsmoking marijuana. The officers were laughing when they talkedabout Goldberg being drunk. Goldberg dropped off Hudson andPikovskiy, and was going to drop off Mikhail Ozik when he lostcontrol of the car approximately seven minutes after being releasedby the officers.

Rickey Ussery testified that he and his wife were injured whentheir car was struck by a hit-and-run driver. Ussery drove to thenearby Clark station, where he called 911 and reported the othercar's license plate. Approximately 45 minutes after the accident,at almost 11 p.m., two police cars escorted the other car to theClark station. One officer, whom Ussery had seen do a U-turn andfollow the other car, told Ussery that the other driver was drunkor high on drugs. When Ussery left the Clark station at about11:15, the officers and other driver were still there.

Skokie police officer Ronald Glad, one of the officers whodetained Goldberg at the McDonald's at 10:16 p.m., testified hebegan working as a police officer in 1990. He smelled cigaretteswhen he approached Goldberg's car. Goldberg denied being in anaccident and denied drinking. Goldberg spoke with a Russian accentwithout slurring. He never heard Goldberg say he had taken TylenolCold & Flu. There was no evidence Goldberg had been drinking. Anofficer needs reasonable suspicion to conduct field sobriety tests,and his reason for testing Goldberg was to detect impairment fromalcohol. He administered a one-leg-stand test, and Goldberg didfine. Officer Gramins did the same test and a horizontal gazenystagmus (HGN). He asked Officer Wolfer to do an HGN, becauseOfficer Wolfer had a penlight, and Goldberg passed the HGNadministered by Officer Wolfer. Skokie police policy did notrequire that three types of tests be administered, and an officercould elect any of the field sobriety tests. He was conducting aDUI and zero tolerance investigation, but he remained three-to-fourfeet away and did not attempt to smell Goldberg's breath. This wasnot a violation of procedure. Goldberg's breath smelled likecigarettes, not alcohol.

It could take up to four hours to process a DUI. When OfficerGramins issued the five citations to Goldberg, Officer Glad was notaware that Goldberg had driven the wrong direction on McCormick,turned left against a red light, and crossed a double line. Goldberg could have been cited for reckless driving. The criteriafor reckless driving and leaving the scene of an accident are verysimilar, and they carry the same punishment because they are bothClass A misdemeanors. Reckless driving requires a custodialarrest; however, leaving the scene of accident does not.

Goldberg left around 11:10 p.m. or 11:15 p.m. and did notdrive unusually. Officer Glad spoke with Officer Gramins for a fewminutes and then returned to the station. He arrived at thestation at 11:20 p.m. or 11:25 p.m. and had no paper work tocomplete.

Skokie police officer Timothy Gramins testified he was theofficer who made the U-turn and followed Goldberg after the firstcollision. He was hired by Skokie in 1995 and took training at theChicago Police Academy. He was not required to administer anyspecific number of the standardized field sobriety tests and couldadminister the ones he felt were appropriate.

Goldberg was smoking and he told Goldberg to put out thecigarette. Goldberg's breath did not smell of alcohol. Goldbergdenied drinking and said he had taken Tylenol Cold & Flu for acold. Officer Gramins had no idea how much or when Goldberg tookthe Tylenol Cold & Flu, but he conducted an HGN test and one-leg-stand test to detect if Goldberg was impaired by the medication. Goldberg spoke with a Russian accent, without slurring. Goldbergdid really well on the tests and was not impaired.

Under the zero tolerance law, someone under 21 years could notconsume alcohol and drive. If he stopped an under-21 driver forspeeding, for example, and detected the driver had consumed onedrop of alcohol, he could not allow him to continue driving. Itwas his duty to take the driver to the station for a breathalyzertest or to the hospital for a blood or urine test. After the test,the person could not drive home and would be turned over to a"reasonable sober" party to be taken home.

He cited Goldberg for failing to reduce speed to avoid anaccident, leaving the scene of a property damage accident,speeding, driving left of center, and having one headlight. He didnot cite Goldberg for driving northbound in the southbound lanes ofMcCormick after striking Ussery's vehicle, turning left against ared after striking Ussery's vehicle, leaving the scene of apersonal injury accident, or reckless driving, in his discretion. He denied that his reason for not writing additional or differentcitations was that he would have had to complete more paperwork ormake a custodial arrest of Goldberg at the end of his work shift. He was scheduled to work until 11:15 p.m., but would be paidovertime if he worked longer. Goldberg left the Clark station at11:15 p.m., and Officer Gramins arrived back at the station atapproximately 11:30 p.m..

Skokie police detective Richard Wolfer testified that he beganworking for Skokie in 1989 and was a patrol officer on September13, 1995. When he arrived at the McDonald's all of the car'soccupants were standing on the sidewalk, and he never saw any ofthem walk. When he searched the car it smelled of smoke. Headministered an HGN test to Goldberg because Officer Glad asked himto and he did not know why Officer Glad made this request. Headministered the test by holding a penlight 8 to 10 inches awayfrom Goldberg's face. He held the penlight at maximum deviationfor approximately one second. When asked if he was required tohold the penlight at maximum deviation for four seconds in order toproperly administer an HGN test, Officer Wolfer testified he had"never heard of how many seconds" he was supposed to hold the lightat maximum deviation. Goldberg followed the instructions about thetest and passed the test. Goldberg's eyes were not watery, and hisbreath smelled of cigarettes, not alcohol, when he was 12 to 18inches away. Goldberg did not stumble and stood without swaying orfalling. Field sobriety tests cannot be administered arbitrarily,and an officer must first have a suspicion. Under certaincircumstances, it could take all four of the field sobriety teststo determine if someone was impaired. Officer Wolfer was calledaway to the scene of an arson and left before anyone else did.

Skokie police sergeant Frederick W. Brehmer testified heworked as an evidence technician at the fatal accident scene. Goldberg's vehicle crossed from one side of Dempster to the other,across all four traffic lanes and a center turn lane, struck atree, and broke in half. The front half of the vehicle continuedto travel an additional 46 feet, and the trunk lid flew onto theroof of an adjacent building.

Skokie police officer Vincent Pszczolkowski, who became apolice officer in 1981, testified he was dispatched to the fatalaccident scene, where he found Goldberg lying on his side on thepavement and checked Goldberg for injuries. He was not checkingfor impairment, and he did not detect an odor of alcohol. MikhailOzik was buckled in the passenger's seat, with his body facingbackward. Mikhail Ozik's chest was moving when he approached. There was no pulse at the wrist and he covered Mikhail Ozik with ablanket. He cited Goldberg for doing 80 miles per hour in a 35-mile-per-hour zone. Goldberg was taken to the hospital, andPszczolkowski continued his investigation there at 2 a.m. Goldberghad glassy eyes, slurred speech, smelled slightly of alcohol, andsaid he had been drinking, and so he cited Goldberg for DUI.

Craig Nordin, a Skokie paramedic, testified that when hearrived at the fatal accident scene, Goldberg was lying in thestreet being treated by another team of paramedics. He helped putGoldberg on a backboard. His head was at Goldberg's midsection forabout 30 seconds, about 18 to 20 inches from Goldberg's face, andhe did not detect alcohol on Goldberg's breath.

Emergency room nurse Gail Crabbe, R.N., testified thatGoldberg had a strong smell of alcohol coming from his breath andpores when he was brought to the emergency room, which she noted inhis hospital chart.

Daniel J. Brown, Ph.D., a forensic toxicologist and formerchief of the Illinois crime lab, testified that Goldberg had ablood alcohol concentration (BAC) of .204 and was grosslyintoxicated at 10:16 p.m. on September 13, 1995. A person withmore than .2 BAC could not mask the signs of intoxication, andGoldberg's intoxication would have been noticeable to a casualobserver. Goldberg was impaired when he drove back to the Clarkstation, but when a highly intoxicated person is fearful, he has a tendency to focus greatly in order to get through a situation,and Goldberg's deposition indicated he was afraid of beingarrested. Someone within three-to-four feet would have smelled thealcohol being excreted from Goldberg's skin and on his breath, andGoldberg could not have masked the smell with cigarettes. Personsunder the influence of alcohol experience an uncontrollable jerkingmotion of the eyes known as horizontal gaze nystagmus (HGN), whichcan be measured. Goldberg would have exhibited HGN. A persongiving an HGN test is supposed to hold a pen between 12 and 18inches in front of the subject's nose.

Marcelline Burns, Ph.D., a research psychologist with 30years' experience researching the effects of alcohol consumptionand other drugs on humans, testified that Goldberg's BAC was .204at 10:16 p.m. The blood draws showing Goldberg's BAC were solidscientific data, and the data was consistent with statements givenby Goldberg, Pikovskiy, and Hudson, and with what Ussery statedOfficer Gramins said to Ussery. The blood draws were notconsistent with statements given by Officers Glad and Gramins.

Dr. Burns further testified that a BAC of .204 is very highand severely impairing. Goldberg's brain processing would havebeen slowed, his judgment and abilities to balance and walk wouldhave been impaired, and he would have exhibited HGN. There is noscientific evidence that Tylenol Cold & Flu causes HGN. Adistinctive odor of alcohol on Goldberg's breath would have beenobvious to people anywhere near him.

Dr. Burns also indicated that she standardized field sobrietytests for the National Highway Traffic Safety Administration(NHTSA), a division of the United States Department ofTransportation. These standardized tests are taught to policeofficers in all 50 states and consist of the one-leg-stand, thewalk and turn, and the HGN. Under NHTSA guidelines, an officer hasno discretion to use less than all three tests on a suspected drunkand must continue with the testing even if one or two tests arepassed. NHTSA issues guidelines and does not requiremunicipalities to adhere to them. The deposition of Skokie policeofficer Van and a form that Skokie officers used in scoring fieldsobriety tests indicated that Skokie officers were required toconduct all three of the standardized tests on September 13, 1995. Officers Glad, Gramins and Wolfer used less than all three tests,and Gramins and Wolfer gave the HGN test incorrectly, holding thepenlight the wrong distance from Goldberg's nose. Dr. Burnsconcluded that Goldberg did not pass the tests.

Skokie police sergeant Frederick W. Brehmer testified that heneeded reasonable suspicion that someone had been drinking in orderto conduct field sobriety tests, which is a lower standard than theprobable cause required to make an arrest. He would need an odor,indications of impairment such as slurred speech, red glassy eyes,or fumbling with a license, or physical evidence such as a can orbottle to have reasonable suspicion of DUI. Once he establishedreasonable belief, he would proceed with field sobriety tests, andif the driver failed the tests, the officer would have probablecause. On cross-examination, he acknowledged that section 5 of theSkokie police department's General Order F-47 indicates an officermust have probable cause to support a suspicion of impairment inorder to ask a driver to exit the vehicle for further examination. He stated that the document was in error, because if he hadprobable cause before the driver exited the vehicle, the officerwould arrest the person right up front.

Retired Chicago police officer Jack Jucewicz testified he leftthe police force in 2000, after about 25 years in trafficenforcement and crash investigation, and about 6 years teachinganything traffic related at the Chicago Police Academy. He taughtofficers they must have probable cause to believe a driver has beendrinking before field sobriety tests can be conducted. OfficersGramins and Glad had probable cause to believe Goldberg had beendrinking when they stopped him after the first accident. OfficersGramins, Glad and Wolfer were not credible when they madestatements about Goldberg's condition.

Further, once Officers Gramins and Glad had sufficientprobable cause to conduct the field sobriety tests on Goldberg,they had no discretion whether to enforce the zero tolerance law,even if they believed Goldberg passed the tests. Proper procedurerequired the officers to take Goldberg to the station and processhim for violating the zero tolerance law. Officers Gramins andGlad should have also cited Goldberg for reckless driving and hadno discretion as to whether to issue this citation. They violatedproper police procedure when they did not cite Goldberg forreckless driving and take him into custody. The officers hadprobable cause to arrest Goldberg for DUI, and they violated properpolice procedure by not citing Goldberg for DUI.

Additionally, under either the zero tolerance or DUI laws, aninvestigating officer is under a duty to smell the breath of thedriver. Officer Glad violated proper police procedure when he didnot attempt to smell Goldberg's breath.

Thamrong Chira, M.D., a Cook County deputy medical examinerwho conducted Mikhail Ozik's autopsy, testified that death wascaused by lacerations and abrasions throughout his body, an openfracture of his right femur, and a dislocated cervical spine. After the jury returned the verdict described earlier in thisorder, the officers and Village filed a posttrial motion forjudgment notwithstanding the verdict or alternatively a new trialpursuant to section 2-1202 of the Code of Civil Procedure (735 ILCS5/2-1202 (West 1994)). Defendants raised numerous arguments,including the arguments they now make on appeal. The motion wasdenied and this appeal taken.

Defendants' first contention is that under the common lawpublic duty rule, the officers owed no duty to Mikhail Ozikindividually to execute and enforce the law and, therefore, couldnot have violated a nonexistent duty in a willful and wantonmanner. Defendants further contend that Illinois does notrecognize an action for willful and wanton conduct. Defendants conclude that in the absence of an actionable duty, the judgment isin error.

Defendants' second contention is closely related. Defendantsargue that while plaintiff sought recovery under the willful andwanton exception of section 2-202 of the Tort Immunity Act (745ILCS 10/2-202 (West 1994)), defendants are immunized by the morespecific language of sections 4-102 and 4-107 of the Act, which donot make exception for willful and wanton conduct.

Plaintiff responds that willful and wanton conduct is anestablished exception to the public duty rule and to the immunitiesgranted to municipalities and their employees by the Tort ImmunityAct. In her second amended complaint, plaintiff alleged theofficers were under a duty to execute and enforce the law in amanner free of willful and wanton conduct or reckless indifferenceto the safety of others. Further, notwithstanding this duty, theofficers cited Goldberg and then permitted and affirmativelydirected Goldberg to drive although they knew Goldberg was underthe influence of alcohol, was intoxicated and was impaired.⁽¹⁾ Plaintiff also alleged the officers permitted Goldberg, a minor, tooperate a motor vehicle despite the existence of the zero tolerancelaw.⁽²⁾

According to the public duty rule, a municipality and itspolice officers owe a common law duty to preserve the community'swell-being, and this duty is owed to the public at large ratherthan to specific members of the community. Porter v. City ofUrbana, 88 Ill. App. 3d 443, 445, 410 N.E.2d 610 (1980). Accordingly, an individual may not recover for negligence. Doe v.Calumet City, 161 Ill. 2d 374, 385, 641 N.E.2d 498 (1994).

The protection of the common law public duty rule was codifiedin the Tort Immunity Act. Doe, 161 Ill. 2d at 385. Sections 4-102and 4-107 of the Act provide:

"Neither a local public entity nor apublic employee is liable for failure *** toprovide adequate police protection or service,failure to prevent the commission of crimes,failure to detect or solve crimes, and failureto identify or apprehend criminals." 745 ILCS10/4-102 (West 1994).

"Neither a local public entity nor apublic employee is liable for an injury causedby the failure to make an arrest or byreleasing a person in custody." 745 ILCS 10/4-107 (West 1994).

In addition, section 2-202 of the Act provides:

"A public employee is not liable for hisact or omission in the execution orenforcement of any law unless such act oromission constitutes willful and wantonconduct." 745 ILCS 10/2-202 (West 1994).

Willful and wanton conduct is defined by the Act as "a courseof action which shows an actual or deliberate intention to causeharm or which, if not intentional, shows an utter indifference toor conscious disregard for the safety of others or their property." 745 ILCS 10/1-210 (West 1994).

In Doe, the supreme court construed an exception to the publicduty rule known as the special duty doctrine, in light ofallegations that a police officer engaged in willful and wantonconduct in responding to a 911 call. Doe, 161 Ill. 2d at 388-91.

In Doe, it was alleged that an apartment resident informedresponding police officers that a violent intruder had lockedhimself inside her apartment with her two minor children. Doe, 161Ill. 2d at 381-82. The officer in charge of the scene declined tobreak down the door because he did not want to be liable forproperty damage, and the officers prevented the woman and herneighbors from breaking down the door. Doe, 161 Ill. 2d at 382. The officers spent 30 minutes calling the landlord to obtain a key,checking the front door, knocking on the door and windows, andpurportedly looking for an unlocked window or rear door. Doe, 161Ill. 2d at 382-83. A police investigator arrived at the scene andfound that the back door was unlocked. Doe, 161 Ill. 2d at 383. From the time the officers arrived at the scene in response to the911 call until the investigator interceded, the intruder hadrepeatedly raped one of the children and choked and threatened theother child. Doe, 161 Ill. 2d at 383.

The mother filed a complaint against the officers andmunicipality, which the trial court dismissed because it was underthe mistaken impression that a plaintiff needed to plead and provethe special duty exception to the public duty rule in addition towillful and wanton conduct. The supreme court determined that thisinterpretation of the public duty rule was in error and that theplaintiff could recover by proving the police officers andmunicipality engaged in willful and wanton conduct alone. Doe, 161Ill. 2d at 390.

The supreme court pointed out that the issue had already beensettled by its recent decision in Leone v. City of Chicago, 156Ill. 2d 33, 619 N.E.2d 119 (1993), where it held that thejudicially created special duty exception and the statutorilycreated willful and wanton exception to the public duty rule areseparate and distinct exceptions to municipal and officerliability. Doe, 156 Ill. 2d at 389. Accordingly, it was notnecessary for plaintiff Doe to prove the special duty exception inaddition to the willful and wanton exception. Doe, 161 Ill. 2d at390.

Plaintiff Doe's case was remanded in part for a jury todetermine whether the alleged conduct was in fact willful andwanton. Doe, 161 Ill. 2d at 405-06.

Subsequently, in Fatigato, it was alleged that police officersacted in a willful and wanton manner when they told a highlyintoxicated man to leave his home after a domestic dispute andpermitted him to drive his car while highly intoxicated. Fatigatov. Village of Olympia Fields, 281 Ill. App. 3d 347, 352, 666 N.E.2d732 (1996). Shortly after the man drove away from the officers,his car crossed an interstate median and struck an oncomingvehicle. Fatigato, 281 Ill. App. 3d at 352. The man was killed,and the occupants of the oncoming car were seriously injured. Fatigato, 281 Ill. App. 3d at 352.

The trial judge entered summary judgment against the plaintiffoccupants of the oncoming car and in favor of the defendantofficers. Fatigato, 281 Ill. App. 3d at 353. On appeal, theplaintiffs argued that Doe, 161 Ill. 2d 374, warranted reversal ofthe summary judgment order. Fatigato, 281 Ill. App. 3d at 353. The officers responded that summary judgment was proper becausethey did not owe the plaintiffs, who were members of the generalpublic, a duty to protect them from an allegedly intoxicatedmotorist. Fatigato, 281 Ill. App. 3d at 353. The officers furtherargued that the willful and wanton exception of section 2-202 ofthe Act was negated by sections 4-102 and 4-107 of the Act. Fatigato, 281 Ill. App. 3d at 353. In short, the officers inFatigato made the same arguments that the officers and Village makein the instant appeal.

However, the court agreed with the plaintiffs' contention thatDoe dispelled the officers' public duty rule argument and that theofficers could be held liable for injuries proximately caused bytheir willful and wanton conduct in the enforcement and executionof the law. Fatigato, 281 Ill. App. 3d 356-57.

The court noted that section 2-202 of the Tort Immunity Actapplied to the facts because "in responding to the domestic disputeat the [man's] residence, [the officers] were clearly involved 'inthe execution or enforcement of *** [the] law.'" Fatigato, 281 Ill.App. 3d at 356, quoting Ill. Rev. Stat. 1989, ch. 85, par. 2-202.

The court then rejected the officers' argument that sections4-102 and 4-107 prevail over section 2-202 and provided theofficers with immunity from allegations of willful and wantonconduct -- it noted that Doe had specifically decided not to adoptthis construction of the statutory sections. Fatigato, 281 Ill.App. 3d at 356.

The plaintiffs' two-count action alleging only willful andwanton conduct was remanded for a jury to determine whether theofficers' conduct was in fact willful and wanton. Fatigato, 281Ill. App. 3d at 358.

Based on Doe and Fatigato, we agree with plaintiff Alla Ozikthat willful and wanton conduct in the execution and enforcement ofthe law is an established exception to the public duty rule and theimmunities granted by the Tort Immunity Act.

Furthermore, Doe abrogated cases that defendants now rely uponfor the proposition that police officers are not liable for willfulor wanton conduct. See, e.g., Porter v. City of Urbana, 88 Ill.App. 3d 443, 410 N.E.2d 610 (1980) (allegations insufficient toinvoke special duty exception to public duty rule); Schaffrath v.Village of Buffalo Grove, 160 Ill. App. 3d 999, 513 N.E.2d 1026(1987) (same); Fessler v. R.E.J., Inc., 161 Ill. App. 3d 290, 514N.E.2d 515 (1987) (same); Seibring v. Parcell's Inc., 159 Ill.App. 3d 676, 680, 512 N.E.2d 394 (1987) (same).

Doe also abrogated cases that defendants rely upon for theproposition that sections 4-102 and 4-107 of the Tort Immunity Actprovide a blanket immunity that prevails over the willful andwanton exception stated in section 2-202 of the Act. Doe, 161 Ill.2d at 389-90; 745 ILCS 10/2-202, 4-102, 4-107 (West 1994). SeeLuber v City of Highland, 151 Ill. App. 3d 758, 502 N.E.2d (1986);Jamison v. City of Chicago, 48 Ill. App. 3d 567, 363 N.E.2d 87(1977).

Additionally, defendants' reliance on Zimmerman v. Village ofSkokie, 183 Ill. 2d 30, 697 N.E.2d 699 (1998), is misplaced. Zimmerman determined that the special duty doctrine, a judicially-created exception to the judicially-created public duty rule,cannot override the immunities the legislature granted when itadopted the Tort Immunity Act. Zimmerman, 183 Ill. 2d at 46. AllaOzik never relied upon the special duty doctrine; therefore,Zimmerman's analysis of the interplay between the special dutydoctrine and the Tort Immunity Act has no bearing here.

We also reject defendants' contention that Illinois does notrecognize claims alleging willful and wanton conduct. Doeindicated there was some apparent "confusion [in the lower courts]concerning whether willful and wanton conduct constitutes aseparate cause of action," and then, as discussed above, answeredthis question in the affirmative. Doe, 161 Ill. 2d at 388-391. Additionally, Fatigato, 281 Ill. App. 3d at 358, remanded theplaintiffs' two-count action alleging only willful and wantonconduct, demonstrating that Illinois does recognize independentclaims of willful and wanton conduct.

Defendants' reliance on Ziarko v. Soo Line R.R. Co., 161 Ill.2d 267, 641 N.E.2d 402 (1994), for the proposition that Illinoisdoes not recognize this type of claim is misplaced. Ziarko, whichpreceded Doe by a few months, determined that the Joint TortfeasorContribution Act (740 ILCS 100/0.01 et seq (1992)) permits adefendant found guilty of willful and wanton conduct to seekcontribution from a defendant found guilty of ordinary negligence,provided that the willful and wanton acts were not intentionallytortious. Ziarko, 161 Ill. 2d 267, 641 N.E.2d 402. Ziarko'sanalysis focused on the distinctions between negligence, willfuland wantonness, and intentionally tortious behavior. Ziarko, 161Ill. 2d at 274. The court remarked, "[t]here is no separate andindependent tort of 'willful and wanton' misconduct" (Ziarko, 161Ill. 2d at 274), before discussing what constitutes willful andwanton conduct. Nothing in Ziarko's discussion or holdingindicates that police officers cannot be held liable for injuriesresulting from willful and wanton conduct in the execution andenforcement of the law.

In a petition for rehearing, defendants argue that "Doe is nowbad law having been overruled by subsequent Supreme Court decisions*** holding *** the courts [should not] read exceptions into theTort Immunity Act where such exceptions are not contained therein." Defendants seem to have lost sight of the fact that an exception tothe immunities provided to police officers by the Act is plainlystated in section 2-202 of the Act: "A public employee is notliable for his act or omission in the execution or enforcement ofany law unless such act or omission constitutes wilful and wantonconduct." (Emphasis added.) 745 ILCS 10/2-202 (West 1994).

Furthermore, recent cases which defendants now contend"invalidat[e]" Doe's analysis of section 2-202 and "revers[e]"Doe's holding do not focus on section 2-202 or address the conductof police officers. In Harinek v. 161 North Clark Street Ltd.Partnership, 181 Ill. 2d 335, 692 N.E.2d 1177 (1998), the supremecourt analyzed whether a fire marshal who bore sole finalresponsibility for determining where, when, and how to hold firedrills in Chicago held the type of position and engaged in the typeof conduct immunized by section 2-201 of the Act. See 745 ILCS10/2-201 (West 1994). In In re Chicago Flood Litigation, 176 Ill.2d 179, 680 N.E.2d 265 (1997), the supreme court analyzed whetherChicago's approval and supervision of a contractor's work inunderground tunnels which led to flooding in downtown buildings wasthe type of conduct immunized by section 2-201 of Act. See 745ILCS 10/2-201 (West 1994). In Village of Bloomingdale v. CDGEnterprises, Inc., 196 Ill. 2d 484, 752 N.E.2d 1090 (2001), thesupreme court analyzed whether the language of sections 2-103, 2-104, 2-106, 2-109, 2-201, or 2-205 of Act included an implicitexception to the Act's immunities, as was argued by a real estatedeveloper who wished to pursue a village for its alleged "corruptand malicious motives" in denying a rezoning petition in order tobenefit municipal cronies. See 745 ILCS 10/2-103, 2-104, 2-106, 2-109, 2-201, 2-205 (West 1998).

The cited cases were premised upon the well-establishedprinciple that when " 'an enactment is clear and unambiguous acourt is not at liberty to depart from the plain language andmeaning of the statute by reading into it exceptions, limitationsor conditions that the legislature did not express.' " Village ofBloomingdale, 196 Ill. 2d at 493, quoting Kraft, Inc. v. Edgar, 138Ill. 2d 178, 189, 561 N.E.2d 656 (1990). In fact, in the mostrecent of the three cited cases, the supreme court referred tosection 2-202 as an example of when the legislature has made anexpress exception to the immunities provided by the Act:

"If the legislature had intended to include anexception for 'corrupt or malicious motives,'it would have done so. Indeed, it hasrecognized exceptions elsewhere. In section2-202, for example, the legislature grantedimmunity to a public employee for an 'act oromission in the execution or enforcement ofany law unless such act or omissionconstitutes willful and wanton conduct.'(Emphasis added.) 745 ILCS 10/2-202 (West1998). In section 3-106, the legislatureagain recognized an exception to liability forwillful and wanton misconduct. 745 ILCS 10/3-106 (West 1998). The legislature hasrecognized exceptions to its grants ofimmunity and enumerated these exceptions inthe plain language of the Act." Village ofBloomingdale, 196 Ill. 2d at 494.

The supreme court then declined to read an implicit exception intothe Act. Village of Bloomingdale, 196 Ill. App. 3d at 494-95.

Thus, contrary to defendants' petition for rehearing, thesupreme court's recent opinions do not render Doe an "overrulednullit[y]." Because the plain language of section 2-202 indicatesthat it immunizes acts or omissions in the execution or enforcementof the law unless those acts or omissions constitute willful orwanton conduct, we conclude that defendants' interpretation ofsection 2-202 and post-Doe case law is fundamentally flawed. If wewere to ignore the plain language of section 2-202, we wouldviolate the precept that a court " 'may not legislate, rewrite orextend legislation.' " Village of Bloomingdale, 196 Ill. 2d at494, quoting Michigan Avenue National Bank v. County of Cook, 191Ill. 2d 493, 522, 732 N.E.2d 528 (2000).

Defendants' third and final contention is that they wereentitled to have the jury apportion fault to the dismisseddefendant, Goldberg, pursuant to the several liability law, section2-1117 (735 ILCS 5/2-1117 (West 1994)). Defendants contend that iffault is apportioned to driver Goldberg and his passenger MikhailOzik, then the officers and Village would be apportioned less than25% of the total fault and section 2-1117 would render them onlyseverally liable and not jointly liable for the $1.14 milliondamage award. See 735 ILCS 5/2-1117 (West 1994).

Alla Ozik responds that defendants waived the issue ofapportionment of fault by failing to object to her proposed juryinstruction and by failing to tender a jury instruction whichincluded Goldberg.

Defendants reply that they submitted an appropriate verdictform during the jury instruction conference, but the form wasmistakenly omitted from the record on appeal. Defendants' replybrief includes argument about the alternate form. Additionally,defendants moved to supplement the record with the purportedalternate form. We denied the motion, because the form was notcertified by the circuit court. Alla Ozik then moved to strikedefendants' reply brief, and we took this motion with the case.

Defendants returned to the trial judge for certification, butthe trial judge concluded that the alternate form was notpreviously offered during the instruction conference. Defendantscited a portion of the instruction conference transcript in whichthe court and counsel referred to some of the proposed instructionsonly by number, and contended that the discussion referenced twodifferent instructions and verdict forms which defendants markedwith the same number. Defendants also contended that one of therejected instructions specifically included Goldberg. Afterconsidering the parties' arguments, including affidavits from theattorneys who attended the instruction conference, the trial judgedetermined that an instruction which specifically included Goldberghad not been previously tendered. The trial judge indicated hewould not have allowed the parties to submit three differentinstructions (one from plaintiff and two from defendants) with thesame number. The judge also indicated that copies of defendants'alternate instructions or verdict form should have been attached tothe post-trial motion defendants had filed nearly 18 monthsearlier.

The judge remarked that even if "the Court feels that averdict form should be in a certain form and the party doesn'tagree with it[,] *** [if] it's an issue they wish to preserve forreview, it's incumbent upon [the party] to get a ruling on theirinstruction. And I was never asked for a ruling on [the] specificverdict form [now] being submitted [for certification]."

Nevertheless, defendants did not withdraw their appellatereply brief or advise this court of the trial judge's ruling. AllaOzik then moved this court to reconsider our order taking with thecase her motion to strike the reply brief, and to sanctiondefendants for tendering a false document and disparaging AllaOzik's counsel.

In response to Alla Ozik's motion to reconsider and sanction,defendants continued to maintain they submitted an alternate formduring the instruction conference, but they argued it neverthelesswould have been futile for them to ask for a ruling on the specificform because the judge refused some of the parties' other proposedinstructions and dictated how the verdict forms would read. Furthermore, the trial judge had previously rejected defendants'section 2-1117 theory, when he struck defendants' section 2-1117affirmative defense, granted Alla Ozik's motion in limine regardingsection 2-1117, and denied defendants' motion to reconsider themotion in limine.

Accordingly, we now grant the portion of Alla Ozik's motionseeking reconsideration of our order taking with the case themotion to strike the reply brief.

We also conclude that defendants have waived any argumentconcerning apportionment of fault pursuant to section 2-1117. Generally, a trial court has discretion to determine theappropriate jury instructions, and its determination will bereversed only for an abuse of discretion. In re Timothy H., 301Ill. App. 3d 1008, 1015, 704 N.E.2d 943 (1998). However, alitigant waives the right to object later, on appeal, toinstructions or verdict forms that were given to a jury, when theparty fails to make a specific objection during the juryinstruction conference or when the form is read to the jury. SeeAuton v. Logan Landfill, 105 Ill. 2d 537, 550, 475 N.E.2 d 817(1984); Marek v. Stepkowski, 241 Ill. App. 3d 862, 870, 608 N.E.2d285 (1992). Additionally, even if the litigant properly objects toan instruction or verdict form, the litigant is still required tosubmit a remedial instruction or verdict form to the trial court. See Auton, 105 Ill. 2d at 550, Marek, 241 Ill. App. 3d at 870. Timely objection and submission assist the trial court incorrecting the problem and prohibit the challenging party fromgaining an advantage by obtaining reversal based on the party's ownfailure to act. Morus v. Kapusta, 339 Ill. App. 3d 483, ___, 791N.E.2d 147 (2003). Furthermore, any doubts which arise from theincompleteness of the record must be resolved against theappellant, the party bearing the burden of submitting asufficiently complete record to support its claims of error. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958 (1984).

In this instance, the record does not indicate that defendantstendered a remedial instruction which specifically included faultallocation to the dismissed defendant Goldberg. The juryinstruction conference transcript substantiates that defendantssubmitted instructions covering various topics, some of which wereaccepted and some of which were rejected by the trial judge. However, the transcript does not disclose the contents of therejected instructions. Furthermore, the trial judge was certainthe defendants never tendered a jury instruction or verdict formwhich specifically included Goldberg, and would not certify thepurportedly missing document for our review.

Defendants cite to cases in which the appellant's failure toput an instruction in the record did not result in waiver. Forexample, in the land condemnation case, Department of Public Worksv. Ass'n of Franciscan Fathers, 69 Ill. 2d 308, 313-14, 371 N.E.2d616 (1977), the property owner's expert witnesses valued the landat more than triple the amount estimated by the State's expertwitnesses, because they included a likely rezoning in theirvaluations. The property owner tendered a jury instruction whichreferenced "the reasonable probability of rezoning" (Ass'n ofFranciscan Fathers, 69 Ill. 2d at 318), but the trial judgerejected it and gave an instruction which did not address rezoning(Ass'n of Franciscan Fathers, 69 Ill. 2d at 317). The jury'ssubsequent verdict coincided with the State's valuations. Ass'n ofFranciscan Fathers, 69 Ill. 2d at 317. On appeal, the Statecontended the jury instruction issue was waived, because theproperty owner had not tendered a companion instruction about thereasonable probability of rezoning. Ass'n of Franciscan Fathers,69 Ill. 2d at 319. The court disagreed, indicating that once thetendered instruction was refused, it would have been futile for theplaintiff to offer another, entirely separate instruction about therezoning issue. Ass'n of Franciscan Fathers, 69 Ill. 2d at 319. This reasoning is inapplicable to the present case, however, sincethere is no indication that there were any companion orsupplemental instructions about the fault apportionment issue.

People v. Rosario, 166 Ill. App. 3d 383, 395, 519 N.E.2d 1020(1988), is also inapplicable, because the trial judge in thepresent case did not expressly state that a particular instructionwould be refused even if it were formally tendered.

Defendants also cite to a portion of Rathbun v. Old BarnRestaurant, 4 Ill. App. 3d 723, 726, 281 N.E.2d 726 (1972), inwhich a new trial was ordered because the judge hurried through theinstruction conference, ruling on matters before they were fullypresented and without allowing the plaintiff's attorney to arguefor instructions which coincided with the allegations of theplaintiff's complaint. Defendants' reason for relying on Rathbunis unclear, since defendants are not arguing that the trial judgein this instance hurried through the proceedings.

Defendants contend that their continual and diligent pursuitof the fault allocation issue throughout the pre-trial, trial, andpost-trial phases preserved the section 2-1117 issue for review. However, none of the cited cases indicates that any of defendants'actions prior to the instruction conference were sufficientsubstitutes for actually tendering an alternate verdict form at theappropriate juncture in the proceedings. Furthermore, the post-trial motion was not an effective pursuit of the fault allocationissue, because, as the trial judge noted, defendants' alternateinstructions or verdict form were not attached to the post-trialmotion.

The facts of this case and the legal principles stated abovelead us to conclude that the fault apportionment issue is indeedwaived. Accordingly, we grant in part Alla Ozik's motion to strikedefendants' reply brief, by striking the uncertified exhibit andall argument concerning the fault apportionment issue, but we denythe motion in part, because it is not appropriate to strike theremaining sections of the brief concerning duty and immunity. Wealso deny Alla Ozik's request to sanction defendants for theirconduct in this appeal.

Based on the foregoing reasoning, we affirm the judgment ofthe circuit court.

Affirmed; and motions taken with the case granted in part anddenied in part.

CAHILL and BURKE, JJ., concur.

1. The DUI or driving while under the influence of alcohol orother drugs provision of the Illinois Vehicle Code (625 ILCS 5/11-501 (West 1994)) prohibits a person from driving or being in actualphysical control of any vehicle while under the influence ofalcohol, other drug(s), or intoxicating compound(s).

2. The zero tolerance provisions of the Illinois Vehicle Code(625 ILCS 5/11-501.8 (West 1994)) provide for the summarysuspension of the driving privileges of a driver under the age of21 years who has a blood alcohol concentration of more than .00 butless than .10.